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Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002)

Schedule 1 : Laws Amended or Repealed

 

 

(Section 45)

 

Item

Number and year of Law

Short Title

Extent Of Amendment Or Year

 

 

Act No. 97 of 1990

Financial Services Board Act, 1990

The amendment of section 1 by the addition of the following subparagraph to paragraph (a) of the definition of "financial institution" :

"(xii) any 'authorised financial services provider' or 'representative' as defined in section 1(1) of the Financial Advisory and Intermediary Services Act, 2001;".

11(a)

Act No. 1 of 1985

Stock Exchanges Control Act, 1985

1. The amendment of section 4 by the -
a) substitution for subsection (1) of the following subsection :

"(1) No member may, as a regular feature of the business of the member, under - take the management of investments on behalf of another person and for such management receive any remuneration in whatever form unless the member is authorised to do so in terms of the rules." and

b) deletion of subsections (1A), (2), (3), (4), (5), (6) and (7)(c).
2. The amendment of section 12 by the substitution for paragraph (d) of subsection (1) of the following paragraph :

"(d) that –

i) a member carries on a - business contemplated in section 4(1) in accordance with the provisions of the rules and
ii) a member may not effect a transaction with a person whom the member reasonably believes requires authorisation as a financial services provider or the status of a representative in terms of the Financial Advisory and Intermediary Services Act, 2001, without having taken reasonable measures to ascertain that such person has the required authorisation or status."
3. The amendment of section 39 by the deletion of subsections (2), (2A) and (2B).
4. The amendment of section 45 –
a) by the deletion of subparagraph (iii) of paragraph (a) of subsection (1);
b) by the deletion of the word "or" at the end of subparagraph (ii) of paragraph (b) of subsection (1), and of subparagraph (iii) of the said paragraph (b);
c) by the substitution for the words following on subparagraph (iii) of paragraph (b) of subsection (1) of the following words :

"but who is carrying on the business of a stock exchange or of a member, [or of a person requiring approval in terms of section 4] as the case may be; and".

5. The amendment of section 47 by the deletion of paragraph (b) of subsection (1).
6. The amendment of section 48 by the substitution for paragraph (a) of subsection (1) of the following paragraph :

"(a) contravenes a provision of section 3(1) or (2), 4(1)[or (2)] or 14;".

7. The substitution of the following heading and subsection for the heading and subsection (1) of 50: "Powers of court to declare member, officer or employee of member disqualified

"50. (1) If a court –

a) convicts a member or an officer or employee of a member [or a person approved in terms of section 4] under this Act or of an offence of which any dishonest act or omission is an element; or
b) finds, in proceedings to which a member or an officer or employee of a member [a person approved in terms of section 4 or such person's officer or employee] is a party or in which [his] such member's officer's or employee's conduct is called in question, that [he] such member, officer or employee has been guilty of dishonest conduct,

the court may (in addition, in a case referred to in paragraph (a), to any sentence it may impose) declare that member, officer or employee of a member [person or such person's officer or employee] to be disqualified, for an indefinite period or for a period specified by the court, from carrying on the business of a member or from being an officer or employee of a member, [or from carrying on the business referred to in section 4] as the case may be.".

11(b)

Act No. 55 of 1989

Financial Markets Control Act, 1989

1. The amendment of section 5 -
a) by the substitution for subsection(1) of the following subsection :

"(1) No member may, as a regular feature of the business of the member, undertake the management of investments on behalf of another person and for such management receive any remuneration in whatever form unless the member is authorised to do so in terms of the rules."; and

b) by the deletion of subsections (1A), (2), (3), (4), (5), (6) and (7)(c).
2. The amendment of section 17-
a) by the substitution in subsection (1) for paragraph (dC) of the following paragraph :

"(dC) that a member carries on a business contemplated in section 5(1) in accordance with the provisions of the rules;" and

b) by the substitution in subsection (1) for paragraph (JB) of the following paragraph :

"(JB) that no member may effect a transaction with a person who the member reasonably believes requires authorisation as a financial services provider or the status of a representative in terms of the Financial Advisory and Intermediary Services Act 2001, with out having taken reasonable measures to ascertain that such person has the required authorisation or status;"

3. The amendment of section 21A by the deletion of subsections (2), (2A and (2B).
4. The amendment of section 26 -
a) by the deletion in subsection (1) of subparagraph (iii) of paragraph (a);
b) by the deletion of the word "or" at the end of subparagraph (ii) of paragraph (b) of subsection (1), and of subparagraph (iii) of the said paragraph (b); and
c) by the substitution for the words following on subparagraph (iii) of paragraph (b) of subsection (1) of the following words :

"but who is carrying on the business of a financial exchange or of a member [or of a person requiring approval in terms of section 5]; and".

5. The amendment of section 28 by the deletion of paragraph (c) .
6. The amendment of section 29 -
a) by the substitution for paragraph (b) of subsection (1) of the following paragraph :

"(b) direct a financial exchange or a member thereof or a recognised clearing house [or a person approved in terms of section 5] to take any other steps, or to refrain from performing or continuing any act, in order to terminate or to obviate any undesirable practice or state of affairs brought to light by the inspection."; and

b) by the substitution for subsection (2) of the following subsection :

"(2) A financial exchange or a member thereof or a recognised clearing house [or a person approved in terms of section 5] shall upon receipt of a request in writing by the Registrar to that effect immediately discontinue the publication or the issue of any advertisement, brochure, prospectus or similar document relating to financial instruments specified in the request which is not a correct statement of fact or is objectionable, or effect such adjustments thereto as the Registrar deems fit."

7. The substitution of the following section for section 30  :

"30. Evidence

A record purporting to have been made or kept in the ordinary course of the carrying on of the business of a financial exchange or the business of a member, or of a recognised clearing house [or the business of a person approved in terms of section 5] or a copy of or an extract from such record certified to be correct by the public prosecutor, shall on its mere production by the public prosecutor in any criminal proceedings under this Act, any other law or the common law against the person who carries or carried on the business in question or any other person, be admissible in evidence and be prima facie proof of the facts contained in such record, copy or extract.".

8. The substitution of the following heading and subsection for the heading and subsection (1) of section 31

 

"31. Power of court to declare member or officer or employee of member disqualified

(1) If a court –

a) convicts a member or officer or employee of a member [or a person approved in terms of section 5] of an offence under this Act or of an offence of which any dishonest act or omission is an element; or
b) finds, in proceedings to which a member or officer or employee of a member [or a person approved in terms of section 5 or such person's officer or employee] is a party or in which such member's officer's or employee's [or person's] conduct is called in question, that such member, officer or employee [or person] has been guilty of dishonest conduct,

the court may (in addition, in a case referred to in paragraph (a) to any sentence it may impose) declare that member, officer or employee of a member [or person or such person's officer or employee] to be disqualified, for an indefinite period or for a period specified by the court, from carrying on the business of a member or from being an officer or employee of a member [or from carrying on the business referred to in section 5], as the case may be.".

11(c)

Act No. 140 of 1992

Drugs and Drug Trafficking Act, 1992

1. The amendment of section 10, by the substitution in subsection (3) for paragraphs (a) and (b) of the following paragraphs :
"a) any stock-broker as defined in section 1 of the Stock Exchanges Control Act, 1985 (Act No. 1 of 1985) [or any person contemplated in paragraph (d), (e) or (for section 4(1) of that Act]; or
b) any financial instrument trader as defined in section 1 of the Financial Markets Control Act, 1989 (Act No. 55 of 1989) [or any person contemplated in paragraph (f) (g), or (h) of section 5(1) of that Act],".